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Himachal Pradesh High Court · body

2015 DIGILAW 1837 (HP)

Kishori Lal v. State of H. P.

2015-12-10

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment dated 23.3.2015, rendered by the learned Special Judge (II), Chamba, H.P., in Sessions trial No. 412/2014, whereby the appellant-accused (hereinafter referred to as the accused), who was charged with and tried for offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ND & PS Act), has been convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs. 1,00,000/- and in default of payment of fine, he was further ordered to undergo simple imprisonment for one year. 2. The case of the prosecution, in a nut shell, is that on 8.6.2014 HC Virender Singh (PW-12) IO SIU Chamba along with Constable Sunil Kumar (PW-1), Constable Yog Raj (PW-2) and Const. Sanjay Kumar (PW-3) proceeded in a private vehicle along with IO bag, electronic scale, camera etc. to lay a Nakka at Gharat Nalla. They reached the spot at about 7:30 AM. In the meanwhile, a person holding a black coloured bag in his right hand came on the road from hill side. On seeing the police, he tried to escape. It raised suspicion. The accused was apprehended. He disclosed his identity. When the bag of the accused was opened a green coloured packet containing black coloured hard substance in the form of bundles and sticks was recovered. It was found to be cannabis. It weighed 1 kg 450 grams. The codal formalities were completed on the spot. The rukka Ext. PW-12/A was sent to the Police Station through Const. Sunil Kumar (PW-1), on the basis of which, FIR Ext. PW-7/D was registered. ASI Subhash Chand (PW-13) deposited the case property with SHO/Inspector R.R.Thakur for resealing. SHO resealed the same. Thereafter, the same was handed over to MHC Prabhat Nahar (PW-7). The contraband was sent to FSL, Junga through HHC Diwan Chand vide RC No. 65/14. The investigation was completed and the challan was put up after completing all the codal formalities. 3. The prosecution, in order to prove its case, has examined as many as 13 witnesses. The accused was also examined under Section 313 Cr.P.C. The accused has denied the prosecution case. The learned trial Court convicted the accused, as noticed hereinabove. 4. Mr. The investigation was completed and the challan was put up after completing all the codal formalities. 3. The prosecution, in order to prove its case, has examined as many as 13 witnesses. The accused was also examined under Section 313 Cr.P.C. The accused has denied the prosecution case. The learned trial Court convicted the accused, as noticed hereinabove. 4. Mr. Adarsh Sharma, Advocate, appearing on behalf of the accused has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. Ramesh Thakur learned Assistant Advocate General for the State has supported the judgment of the learned trial Court dated 23.3.2015. 5. We have heard learned counsel for both the sides and gone through the records of the case carefully. 6. PW-1 Const. Sunil Kumar deposed that on 8.6.2014 at about 7:30 AM they were present at place Gharat Nalla. They saw a person coming from the hill side holding a black coloured bag in his right hand. The person after seeing the police party got perplexed and tried to escape. He was apprehended. On the basis of suspicion, his bag was opened and inside it another carry bag was recovered. On opening the carry bag, charas weighing 1 kg. 450 grams was recovered. It was sealed with 5 seals of impression “K”. It was taken into possession vide memo Ext. PW- 1/A. The rukka was written. It was handed over to him. He handed over the rukka to MHC Police Station Kihar. FIR was registered. The case property was produced by the learned Public Prosecutor while recording the statement of PW-1 Constable Sunil Kumar before the Court. In his cross-examination, he has admitted that every vehicle which comes from Kihar to Chamba passes through Gharat Nalla. He did not know that between 7:00 AM to 9:00 AM, between Kihar to Gharat Nalla about 5-6 buses and equal number of small vehicles passes through Gharat Nalla. He admitted that hand pump was installed near the abadi. He later on admitted that between 7:30 to 9:40 AM, many vehicles passes through Gharat Nalla. He took rukka and proceeded on foot from the spot and thereafter he took a lift from Salooni. At about 11:30 AM, he reached the Police Station. From the Police Station, again he proceeded at about 12:45 and reached Gharat Nalla at about 2:00 PM. 7. PW-2 Const. He took rukka and proceeded on foot from the spot and thereafter he took a lift from Salooni. At about 11:30 AM, he reached the Police Station. From the Police Station, again he proceeded at about 12:45 and reached Gharat Nalla at about 2:00 PM. 7. PW-2 Const. Yog Raj deposed the manner in which the accused was apprehended, search, seizure and sealing proceedings were completed on the spot. In his cross-examination, he deposed that they reached at Gharat Nalla at about 7:25 AM. Initially he stated that the accused was searched by the I.O and again stated that bag was searched. He has admitted that at the time of search of the accused, option under Section 50 of the ND & PS Act to the effect that he has legal right to be searched before any Magistrate or Gazetted Officer was not given to him. 8. PW-3 Const. Sanjay Kumar also deposed the manner in which the accused was apprehended, search, seizure and sealing proceedings were completed on the spot. It took about 10 minutes to apprehend and interrogate the accused. First of all, when the accused was apprehended, the IO asked the name of the accused and thereafter bag of the accused person was opened. The accused person was not personally searched at that time. 9. PW-5 HHC Diwan Chand deposed that on 9.6.2014 MHC, PS Killar HC Prabhat Chand handed over to him one parcel sealed with five seals each of impressions “K” and “A”, along with copy of FIR, NCB forms in triplicate, sample seals and docket to be deposited at FSL, Junga vide RC No. 65/14. He deposited the articles at FSL, Junga. 10. PW-6 HHC Satish Kumar deposed that ASI Subhash, Const. Krishan Chand brought the accused in the Police Station along with pulinda sealed with five seal impressions of “K”, sample of the seal, NCB forms in triplicate and handed over to Inspector/SHO R.R.Thakur. SHO again resealed the same. Thereafter, SHO R.R.Thakur filled in the relevant columns No. 9 to 12 of the NCB forms in triplicate and also put seal “A” on the NCB forms in triplicate. Memo Ext. PW-6/B was prepared in this behalf. 11. PW-7 HC Prabhat Nahar deposed that on 8.6.2014 at around 4:20 PM, Insp. SHO again resealed the same. Thereafter, SHO R.R.Thakur filled in the relevant columns No. 9 to 12 of the NCB forms in triplicate and also put seal “A” on the NCB forms in triplicate. Memo Ext. PW-6/B was prepared in this behalf. 11. PW-7 HC Prabhat Nahar deposed that on 8.6.2014 at around 4:20 PM, Insp. SHO R.R.Thakur deposited with him one pulinda containing five seals each of impressions “K” and “A” containing 1 kg 400 grams charas/cannabis along with NCB forms in triplicate and sample seals. He made necessary entry in the malkhana register at Sr. No. 181. On the next day, i.e. on 9.6.2014, he handed over the case property to HHC Diwan Chand vide RC No. 65/14 to be deposited in FSL Junga. 12. PW-11 SHO R.R.Thakur, deposed that he resealed the case property vide memo Ext. PW-6/B. He also filled up the relevant columns of NCB form. Thereafter, he deposited the same with MHC Prabhat Chand. 13. PW-12 HC Virender Singh deposed the manner in which the accused was apprehended, search, seizure and sealing proceedings were completed on the spot. In his cross-examination, he admitted that any vehicle which comes from Surgani and Kihar to Chamba passes through Gharat Nalla. He also admitted that between 7:30 AM to 10:00 AM, many buses passes through Gharat Nalla. He searched the bag of the accused person. He had not given any option to the accused as required under Section 50 of the ND & PS Act. He did not try to associate any independent/local witnesses at the time of search. Volunteered that it was an isolated place. 14. PW-13 ASI Subhash Chand prepared the spot map. He recorded the statement of Const. Yog Raj. He deposited the case property at about 4:20 PM before the SHO. 15. What emerges from the statement of PW-1 Const. Sunil Kumar is that the hand pump was situated near the abadi. He also admitted that every vehicle which comes from Kihar to Chamba passes though Gharat Nalla. PW-3 Const. Sanjay Kumar has admitted in his cross-examination that vehicles were crossing after 7:30 AM at the spot. PW-12 HC Virender Singh has admitted that between 7:30 AM to 10:00 AM, many buses passes through Gharat Nalla. He also admitted that any vehicle which comes from Surgani and Kihar to Chamba passes through Gharat Nalla. PW-3 Const. Sanjay Kumar has admitted in his cross-examination that vehicles were crossing after 7:30 AM at the spot. PW-12 HC Virender Singh has admitted that between 7:30 AM to 10:00 AM, many buses passes through Gharat Nalla. He also admitted that any vehicle which comes from Surgani and Kihar to Chamba passes through Gharat Nalla. He also admitted that he did not try to associate any independent/local witnesses at the time of search. According to him, it was an isolated place. 16. It is clear from the statements of above mentioned witnesses that the place where the accused was intercepted was neither an isolated place nor it was secluded one. Many vehicles pass through the alleged spot. The prosecution should have associated occupants of the vehicles to inspire confidence in the search, seizure and sealing proceedings on the spot. PW-12 HC Virender Singh has categorically admitted in his cross-examination that he has not even tried to associate any independent/local witness at the time of search. 17. PW-2 Const. Yog Raj, in his cross-examination, has admitted that accused was searched by the I.O and again stated that bag was searched. He has admitted that at the time of search of the accused, option under Section 50 of the ND & PS Act to the effect that he has legal right to be searched before any Magistrate or Gazetted Officer was not given to him. PW-12 HC Virender Singh deposed that he has searched the bag of the accused person. He has admitted that he has not given any option to the accused as required under Section 50 of the ND & PS Act. It was not necessary for the police to carry out the personal search of the accused since the contraband was recovered from the bag. However, the fact of the matter is that as per record, as per the statement of PW-2 Const. Yog Raj, accused was also searched but he was not apprised of his legal right to be searched either before the Magistrate or the Gazetted Officer. 18. Their lordships of the Hon’ble Supreme Court in the case of State of Rajasthan vrs. However, the fact of the matter is that as per record, as per the statement of PW-2 Const. Yog Raj, accused was also searched but he was not apprised of his legal right to be searched either before the Magistrate or the Gazetted Officer. 18. Their lordships of the Hon’ble Supreme Court in the case of State of Rajasthan vrs. Parmanand and another, reported in (2014) 5 SCC 345 , have held that if merely a bag carried by a person is searched, without there being any search of his person, S. 50 will have no application but if bag carried by him is searched and his person is also searched, S. 50 would be attracted. Their lordships have also held that it was improper for PW-10 SI “Q” to tell respondents that a third alternative was available. It has been held as follows: “15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent No.1 Parmanand’s bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No.2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application. 19. We also notice that PW-10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before a nearest gazetted officer or before PW-5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW-5 J.S. Negi by PW-10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to a nearest Magistrate or a nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to a nearest Magistrate or a nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW-10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW-5 J.S. Negi, the Superintendent, who was part of the raiding party. PW-5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW-5 J.S. Negi, the search would have been vitiated or not. But PW-10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW-10 SI Qureshi is vitiated.” 19. The case property was produced by the learned Public Prosecutor while recording the statement of PW-1 Const. Sunil Kumar. The extract of copy of the malkhana register is Ext. PW-7/A. There is entry of sending of the contraband on 9.6.2014 to FSL, Junga through HHC Diwan Chand. There is no entry when the case property was deposited, taken out from the malkhana and produced in the Court. There is no DDR recorded when the case property was produced before the trial Court. Similarly, there is no entry when the case property after production in the trial Court was re-deposited in the malkhana register. It is necessary for the prosecution to prove that the case property was taken out from the malkhana for the production in the Court and also preparing DDR to this effect and the same process is to be undergone when the case property after its production in the Court is taken back and deposited in the malkhana. There has to be entry in the malkhana register when it is re-deposited and DDR is also prepared. The production of the case property in the Court is mandatory. There has to be entry in the malkhana register when it is re-deposited and DDR is also prepared. The production of the case property in the Court is mandatory. There is doubt whether the case property which was produced in the Court was the same which was recovered from the accused and sent to FSL, Junga in the absence of any corresponding entries made at the time of taking it and re-deposit in the malkhana register or it was case property of some other case. It has caused serious prejudice to the accused. The nabbing of the accused, recovery and sealing proceedings in the instant case are doubtful. When the case property was produced in the Court, there is no reference as to who brought the case property to the Court from malkhana and by whom it was taken back. It is necessary to keep the case property in safe custody from the date of seizure till its production in the Court in ND & PS cases. 20. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Judgment of conviction and sentence dated 23.3.2015, rendered by the learned Special Judge-II, Chamba, H.P., in Sessions trial No. 412/2014, is set aside. Accused is acquitted of the charges framed against him by giving him benefit of doubt. Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 21. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.